HKSAR v. LAU YING WAI

HCMA 861/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 861 OF 2003

(ON APPEAL FROM NKCC 4109/2003)

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J U D G M E N T

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1. This is an appeal against conviction. The Appellant was charged with one count of making for sale or hire an infringing copy of copyright work without the licence of the copyright owner contrary to section 118(1)(a) and section 119(1) of the Copyright Ordinance, Cap. 528, Laws of Hong Kong. The Appellant was convicted after trial. The trial was conducted in Chinese but at the request of the Appellant and with the agreement of the respondent, the appeal was heard in English.

Prosecution Evidence

2. PW1 is a Customs & Exercise officer, posing as a customer, who went to the shop at F108 of Sincere Shopping Centre, Mong Kok. There she gave the Appellant HK$10.00 and the Appellant helped her download a telephone ring tone file. Such ring tone, the prosecution alleged was an infringing copy of a copyright musical work. PW2 was the director of the company, "Hilarious", which owns the copyright to the song "Doctor and me" and he gave evidence that the company did not produce ring tone of the song "Doctor and me". And matters relating to the company copyright was handled by EMI Music Hong Kong Limited. PW4 was a Marketing Manager of EMI and she said that EMI was the exclusive manager of the copyright of the songs of Hilarious. Her duties included authorising other company to use copyright songs belonging to the company of PW3 and EMI did not produce telephone ring tone and did not authorise any person at Shop F108 of Sincere Shopping Centre to use the musical work "Doctor and Me".

3. PW6 was the Creative and Artist and Repertoire Manager of EMI. She had certificates from the Royal Schools of Music and the Royal Musical College of Canada in 1993. She had examined the "Doctor and me" files which were saved in P1, that is the notebook computer of the Defendant, and the relevant ring tone which was stored in P9, which is the mobile phone produced by PW1. After listening she found that the melody of 9 music files which were saved in P1 was identical to that of "Doctor and me". She also confirmed that the relevant ring tone saved in P1 bore the same melody.

Defence Case

4. The Appellant elected to give evidence, he said that Shop F108 belonged to his girlfriend. He was a policeman by occupation and had arrived the shop sometime after 3:00 pm on the day of the offence. His girlfriend had left the shop at about 4:00 pm and later PW1 entered the shop and enquired about matters in relation to the downloading of telephone ring tones. PW1 requested to have the ring tone of "Doctor and me". The Defendant said he used the computer in the shop and sent the MIDI file of "Doctor and me" by infra red to the mobile phone provided by PW1 through a software, namely, Logo Manager. The Defendant did not deny he received HK$10.00 from PW1, and he said he had on a number of occasions in the past downloaded ring tone from the internet before the incident. He did not believe that such downloading could possibly violate the Copyright Ordinance. He said that he had once bought a Nokia 8210 mobile phone and one of the ancillary accessories was a software for editing ring tone, and as far as he knew the record companies did not produce any musical ring tone and therefore what he did would not violate the law.

Magistrate's findings

5. The learned Magistrate after analysing the evidence found that all the prosecution witnesses and the Defendant were honest and reliable witnesses and he accepted all the evidence. He also find that the ring tone was a copy of the substantial part of the musical work "Doctor and me" and that the Defendant in sending by infra red the ring tone from P1 to P9 had already committed the making of an infringing copy and by his act of receiving HK$10.00 from PW1, he had sold the infringing copy in question. After the learned Magistrate had referred to the statutory defence in section 118(3) of the Copyright Ordinance that if the Defendant can prove that he did not know and had no reason to believe that the copy in question was an infringing copy of the copyright work, then he would have successfully negatived the case against him. The learned Magistrate at paragraph 22 of the Statements of findings had this to say:

"I accept that the Defendant did not know the ring tone which was sent to P9 was an infringing copy of a copyright work, but I do not agree with the Defence that the Defendant had no reason to believe that the ring tone in question was an infringing copy."

And further at paragraph 23, the learned Magistrate said this:

"... I agree that ordinary people may not think or know that it is an infringement of copyright, the reason may be that they are not clear about the definition of infringement under the law. But failing to understand the law or misinterpreting the law is not a defence. No doubt that the Defendant knew the ring tone which he sent to P9 for PW1 was a section of the melody of a musical work "Doctor and me". From an objective standard point of view, when the Defendant received from PW1 HK$10.00 for producing the ring tone, the Defendant had the reason to believe that the ring tone was an infringing copy."

6. The learned Magistrate then convicted the Appellant of the charge.

Appeal

7. Ms Panesar who represents the Appellant in this appeal submitted that the learned Magistrate having found that the Appellant was an honest and a reliable witness and believed that the Appellant did not know that the ring tone which he sent to exhibit P9 was an infringing copy had failed to properly consider the defence that he had no reason to believe that the copy in question was an infringing copy of the copyright work. And Ms Panesar pointed out the Appellant had given evidence that the ring tone in question had been on the internet and available to all for 3 years, and no steps had been taken in these 3 years to remove it. This evidence of the Appellant was not challenged by the prosecution and as far as the Appellant was aware he said that "To B" was the producer and owner of the ring tone. The Appellant also said that as far as he knew this ring tone had been on the internet for about 3 years and was still an existence on 1 August 2003 and EMI and Hilarious never took any steps to remove it and so he was led to believe that this ring tone was legitimate and of a non-infringing nature.

8. The learned Magistrate's conclusion in paragraph 23 of the Statement of Findings is confusing. He seems to be saying that because this was not the pirating of a song but the making of a melody into a ring tone for which the Defendant had received payment then the Appellant had reason to believe the ring tone is an infringing copy.

9. MacDougal JA in Reg v Lo Sui-wing and another Cr. App. 509 of 1989 said:

"where an inference of guilt may properly be drawn from a set of facts, a jury or judge sitting without a jury, is entitled in the absence of a credible explanation leading to a different conclusion, to convict the accused on the basis of that inference."

10. Here in this case the Appellant had given evidence as to why he believed that the ring tone was not a copy of a copyright work, as he said, he had in the past downloaded ring tones from the internet for multiple times and he did not believe that such downloading could possibly violate the Copyright Ordinance. His evidence was accepted to be truthful by the learned Magistrate but the learned Magistrate in convicting the Appellant did not elaborate on what basis he believed that the Defendant had reason to believe that the ring tone was an infringing copy. This Court is therefore left with a lurking doubt and that doubt has to be resolved in favour of the Appellant, so the appeal is therefore allowed, the conviction is quashed and the sentence set aside, the fine if paid is to be refunded to the Appellant.